Sabatini and Associates, LLC Attorneys at Law :: Newington :: Hartford :: Connecticut

What reinstatement rights does an employee have where he would have been discharged or laid off during the leave, or where his job is changed during the leave?

An employee on an FMLA leave has no greater right to reinstatement than if the employee had continued to work instead of taking leave. If the employee would have been terminated or laid off for reasons unrelated to the leave, then the employee is not entitled to reinstatement. (However, the employee must still be given transfer rights if he would have had such rights absent the leave).

Indeed, an employer may effect the discharge or lay off during the FMLA leave when it otherwise would have occurred and terminate the continuation of the employee’s health benefits at that time. Additionally, if the employee’s job was reorganized or otherwise changed during the leave, the employee is only entitled to the reorganized or changed job he would have had if he had not taken a leave of absence.

The employer has the burden of proving, however, that the discharge, layoff, or job restructuring is not related to the FMLA leave. Thus, employers should be very careful not to use these limits on an employee’s reinstatement rights as an excuse to take advantage of the FMLA and affect the employee’s job status.